Charlton v Reid
| Jurisdiction | Jamaica |
| Judge | Macgregor CJ |
| Judgment Date | 25 April 1960 |
| Neutral Citation | JM 1960 CA 12 |
| Court | Court of Appeal (Jamaica) |
| Date | 25 April 1960 |
Court of Appeal
MacGregor, C.J.; Cools-Lartigue, J.A.; Small, J.A
KG Smith for the appellant.
CM Daley for the respondent.
Tort - Trespass to goods - Detinue — Seizure of motor vehicle by police — Road Traffic Law, Cap 346 [J], ss 52 and 53 — Correct interpretation of s 53 (5) — Police entitled to seize vehicle used in contravention of s 53.
Evidence - Notes of evidence taken in previous proceedings may be admitted in subsequent proceedings only if permitted by some statute — Evidence Law, Cap 118 [J], s 18 — Judicature (Resident Magistrates) Law, Cap 179 [J], s 27
Police - Statutory protection of police officers against actions — Malice or absenceof reasonable and probable cause must be expressly pleaded — Constabulary Force Law, Cap 72 [J], s 39.
Limitation of actions - Application to amend claim — Whether Public Authorities Protection Law, Cap 316 [J], operates merely to deprive a defendant of a legal defence.
Administrative law - Police — Statutory protection of police officers against actions — Malice or absence of reasonable and probable cause must be expressly pleaded — Constabulary Force Law, Cap 72 [J], s 39.
delivered the judgment of the court This is an appeal by the defendant from the judgment of a resident magistrate, Clarendon, in an action in which the plaintiff claimed damages for that the defendant, a police constable, on 28 March 1959, unlawfully and illegally seized the plaintiff's motor van and unlawfully and illegally detained the same. The appeal first came before the court on 11 February 1960, when judgment was reserved. At the request of the court it was further argued on 31 March 1960, and the court again reserved judgment.
On Saturday, 28 March 1959, the plaintiff, who resides at Stuarton in Clarendon, sent his son Wesley Reid in his motor van to May Pen. The van, Which was licensed as a public passenger vehicle, had been chartered by one Joseph brown to take his family to may Pen market. On arrival at May Pen the defendant seized the van, alleging that it was being used otherwise than as a contract carriage, which was the particular type of public passenger vehicle for which it was licensed. After its seizure, the van was taken to the May Pen police station and was kept there. Wesley Reid was at a later date charged in the Petty Sessions Court, that he being the driver of a contract carriage, “did ply the said vehicle for hire along the main street in May Pen” contrary to s 52 (2) of the Road Traffic Law, Cap 346 [J].On 26 June 1959, he was acquitted and the van was then returned to the plaintiff.
After its seizure the plaintiff made demands for its return, on three occasions of the Police at May Pen, and on one other occasion of Inspector Biggs of Police Traffic Headquarters at Elleston Road. As to whether a demand was ever made of the defendant will be discussed later.
The plaintiff issued his action on 31 August 1959. It was returnable at the Resident magistrate's Court held at May Pen on 1 October 1959. On 12 September he filed in the office of Resident Magistrate's Court, Clarendon, a notice of intention to apply to amend the particulars of claim by inserting the words “without reasonable or probable cause”, so that the claim would read “the defendant…without reasonable or probable cause unlawfully and illegally seized” he plaintiff's motor van, “and unlawfully and illegally detained the same”.This application was made in order to comply with the provisions of s 39 of the Constabulary Force law, Cap 72 [J]. It is to be noted that the respondent did not lodge and deliver amended particulars as he might have done under the authority O 13, r 10, of the Resident Magistrates’ Courts Rules [J]. At the trial, upon application to amend in terms of the notice, objection was taken on the ground that more than six months had expired since the seizure, and that the effect of granting the amendment would be to revive an action which by reason of the irregularity pleading was statute barred. The resident magistrate granted the amendment.
During the cross-examination of the appellant, counsel for the respondent having cross-examined him about the evidence he had given at the trial of Wesley Reid for the offence which was preferred against him in the Petty Session Court, tendered in evidence a certified copy of the notes taken by the resident magistrate who had presided at the trial. Objection was taken to the admission of the notes on various grounds, but they were admitted.
Before the respondent closed his case, he called the clerk of the courts to produce the information against Wesley Reid. Objection was taken to its admission but he objection was overruled and it was admitted.
It was submitted for the appellant that: (1) the certified copy of the evidence given by him at the trial of Wesley Reid, and (2) the information against Reid, were improperly admitted; and (3) the particulars of claim were improperly amended.
We consider first the objection to the admission of the certified copy of the notes of evidence. This court has recently delivered a judgment in R v Pottinger (1) dealing with the circumstances in which a certified copy of notes of the evidence of a witness taken at a previous trial may be tendered in evidence at a subsequent trial. None of the objections taken to the admission of the certified copy in the instant case was raised in R v Pottinger (1).
Section 18 of the Evidence Law, Cap 118 [J], provides:
‘A witness may be cross-examined as to previous statements made by him in writing, or reduced into writing, relative to the subject-matter of the cause, without such writing being shown to him; but it it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those part of the writing which are to be used for the purpose of so contradicting him:’
It will be seen that one of the requirements before proof of the contradictory writing may be given, is, that the attention of the witness must be called to those parts of the writing which are to be used to contradict him. In the cross-examination of the appellant he was asked whether, at the previous trial, he had made a statement which, if he had made it, would have been contradictory to the statement he had given in evidence. But at no time was his attention called to the relevant part of his earlier evidence. If it had been so called, it may be that the witness would have admitted making the previous contradictory statement, and given an explanation for his loss of memory which may have been accepted by the court. For that reason the foundation had not been laid to justify the admission of the contrary statement. It was wrongly tendered and was improperly admitted.
But, as was pointed out in R v Pottinger (1) before a certified copy of notes of evidence of previous trial can be tendered to contradict a witness, there must be some statutory authority for its admission in evidence. The only authority is s 27 of the Judicature (Resident Magistrates) Law, Cap [J], which provides:
‘The Clerk of the Courts, or in his absence the Assistant Clerk, or such Clerk as may be directed by the Magistrate, shall take notes of evidence in every case heard summarily before either the Court or the Court of Petty Sessions; and the magistrate shall take notes of the evidence in the trial of all indictments and in all civil suits; and such notes, heretofore taken, or hereafter to be taken, by the Magistrate, or a copy thereof, purporting to bear the seal of the Court, and to be signed and certified as a true copy by the Clerk of the Courts, shall at all times be admitted in all Courts and places whatsoever, in the trial or hearing of all Civil proceedings suits and matters, for the purpose of impeaching the credit or contradicting the evidence of any person in accordance with provisions of sections 16 and 18 of the Evidence Law, as prima facie evidence that the statements therein appearing to have been made by such person were so made.’
Analysis of this section shows that two classes of cases are referred to. The first is, cases heard by a resident magistrate summarily or by a Court of Petty Session. In those cases the notes of evidence shall be taken by the clerk of the courts or by such assistant clerk as may be directed by the resident magistrate. This provision has always been interpreted by the court as authorising the taking of notes by the clerk or by an assistant clerk, when the resident magistrate does not him self take the notes. But on the trial of indictments and of civil cases notes must be taken by the resident magistrate himself. The reason for this distinction can well be appreciated. In important cases, i. e indictments and civil actions, the notes must be taken by a person of experience and with legal training. In cases of less importance notes may be taken by a person of less experience, and, perhaps, without legal training....
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